University of Arkansas at Little Rock Law Review Volume 28 Issue 1 The Ben J. Altheimer Symposium: Courtroom With a View: Perspectives on Article 1 Judicial Independence 2005 From Earl Warren to Wendell Griffen: A Study of Judicial Intimidation and Judicial Self-Restraint Honorable Robert L. Brown Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Judges Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Honorable Robert L. Brown, From Earl Warren to Wendell Griffen: A Study of Judicial Intimidation and Judicial Self-Restraint, 28 U. ARK. LITTLE ROCK L. REV. 1 (2005). Available at: https://lawrepository.ualr.edu/lawreview/vol28/iss1/1 This Article is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. FROM EARL WARREN TO WENDELL GRIFFEN: A STUDY OF JUDICIAL INTIMIDATION AND JUDICIAL SELF-RESTRAINT HonorableRobert L. Brown* I. INTRODUCTION It is a matter of the greatest personal satisfaction for me to be here to- day to speak at this symposium, which is being held in honor of the late Judge Richard Sheppard Arnold. Judge Arnold was a close friend whom I admired and loved. I am sure he is looking down today on these events with great pleasure and pride. I must also confess that I stopped wearing bowties in the 70s with the exception of black tie, to my wife Charlotte's total chagrin. But in honor of Richard Arnold, I broke down, and I'm wearing one today. It is actually one of Richard's bowties which his widow, Kay, was kind enough to give me. I decided that on this occasion, I had to wear it. My topic for the symposium is From Earl Warren to Wendell Griffen: A Study of Judicial Intimidation and Judicial Self-Restraint. Clearly, the scope of my address is expansive. I will be discussing several facets of judi- cial independence. The most obvious is the danger to judicial impartiality that comes from outside threats and retaliation following judicial decisions. In addition to outside forces, I will be addressing self-imposed pressures brought about by the judges themselves that affect the judges' impartiality. I will also discuss the judicial boundaries for public comment, assuming there are any left after Republican Party of Minnesota v. White.' And I will end by touching on the always controversial subject of the activist judge. Is ju- dicial activism judicial independence run amok? Justice Scalia certainly thinks so. There is no question that the role of judges is undergoing intense scru- tiny and reevaluation in our society on many fronts and from many quarters. The ultimate question posed is should there be any curbs or restraints on judicial decision-making and if so, in what form? The corollary question raised is how "active" do we want our judges to be? How active should they be in their judicial decision-making, in announcing their views on disputed issues in judicial campaigns, and in commenting on non-judicial issues as sitting judges? * Robert L. Brown is an Associate Justice of the Arkansas Supreme Court. He is a graduate of the University of the South (B.A. 1963), Columbia University (M.A. 1965), and the University of Virginia (J.D. 1968). 1. 536 U.S. 765 (2002). UALR LAW REVIEW [Vol. 28 II. EARL WARREN AND IMPEACHMENT A. Impeachment of Judges I will deal first with public and legislative reactions to specific judicial decisions and to so-called activist judges. I went to law school in the mid- sixties, some ten years after the two Brown2 decisions and after Reynolds v. Sims, 3 Mapp v. Ohio,4 and the other landmark decisions of the Warren Court. The Miranda decision would soon follow. 5 The tumult from these decisions, and particularly the two Brown decisions followed by Cooper v. Aaron,6 which called for immediate desegregation of the Little Rock schools, was cacophonous and far reaching. 7 "What have these activist judges on the United States Supreme Court wrought?" was the battle cry. How can they simply strike down the Jim Crow way of life that was so deeply embedded in the culture of so many states for centuries with the sweep of a judicial pen? Wasn't that a matter for legislation and congres- sional action? The Supreme Court, in the minds of many, had gone way too far and had made a mockery of the separation of powers in that the Court was now legislating and usurping the role of Congress. These were activist judges, the critics said, and that was clearly meant to be a pejorative term. Surely, the framers of the Constitution had never intended judicial interpre- tation of the Constitution to have such far-reaching consequences, they railed. Because the Justices had violated their oaths of office, they should be impeached. Earl Warren, as Chief Justice of the Court and author of the two Brown decisions, became the poster child for the impeachment effort in the 1950s. "Impeach Earl Warren" was the mantra, and signs to that effect, sponsored 2. Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954) (holding that doctrine of "separate but equal" violates the Fourteenth Amendment); Brown v. Bd. of Educ. of Topeka, 349 U.S. 294 (1955) (remanding to the federal district courts for orders necessary to admit *the parties to public schools on a racially nondiscriminatory basis "with all deliberate speed"). 3. 377 U.S. 533 (1964) (holding that "the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis"). 4. 367 U.S. 643 (1961) (announcing the exclusionary rule for invalid searches and seizures). 5. See Miranda v. Arizona, 384 U.S. 436 (1966) (establishing procedural safeguards for defendants in custody prior to taking statements in order to secure privilege against self- incrimination). 6. 358 U.S. 1 (1958). 7. See id. at 17 (holding that desegregation of Little Rock public schools should not be delayed and that "the constitutional rights of children not to be discriminated against in school admission on grounds of race or color ... can neither be nullified openly and directly by state legislators or state executive or judicial officers.") 2005]JUDICIAL INTIMIDATION AND JUDICIAL SELF-RESTRAINT 3 by the private right-wing organization known as the John Birch Society, popped up around the country and especially in the South. Drive him from office, the critics howled, because he had expanded his judicial authority unconscionably and exponentially. Never mind that the Warren Court was unanimous in the Brown opinions and had performed its role of interpreting state law in light of the United States Constitution. This, of course, dated back to Federalist Paper No. 78 and to Chief Justice John Marshall, who wrote in the seminal case of Marbury v. Madisons that the Constitution con- trols any legislative act "repugnant to it" and that it was the province of the Supreme Court to say what the law is.9 Never mind that the "separate but equal" doctrine was odious and pernicious and clearly flew in the face of the Fourteenth Amendment, as Mr. Justice Harlan had so perceptively under- stood and so eloquently put it in his dissent in Plessy v. Fergusonl° in 1896 where he alluded to our "color-blind" Constitution." It was abundantly clear that Earl Warren's critics sought to retaliate against the Chief Justice personally and the Court as a whole for decisions they found to be abhorrent. It was retaliation, but it was also calculated in- timidation designed to take the edge off constitutional interpretation in the 8. 5 U.S. 137 (1803). 9. Id. Chief Justice John Marshall wrote: It is a proposition too plain to be contested, that the constitution controls any leg- islative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity ex- pound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitu- tion apply to a particular case, so that the court must either decide that case con- formably to the law, disregarding the constitution; or conformably to the consti- tution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Id. at 177-78. 10. 163 U.S. 537 (1896). 11. Justice Harlan stated: But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitu- tion is color-blind, and neither knows nor tolerates classes among citizens. In re- spect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the su- preme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.